25 May 2011 Press Release
Judgment handed down on unlawful detention of foreign national ex-offender after the Home Office failed to carry out regular detention reviews as required - SK (Zimbabwe) v SSHD
BID acted as an intervener in the case of Shepherd Masimba Kambadzi (previously referred to as SK (Zimbabwe)) (FC) v Secretary of State for the Home Department (0094214-0000001)
The Supreme Court has declared that the immigration detention of a foreign national ex-offender from Zimbabwe, Shepherd Kambadzi, was unlawful. Kambadzi came to the UK on a visitor’s visa in 2002 on a visitor's visa. In 2005 he was convicted of assault and sexual assault and sentenced to 12 months in prison. Shortly before his release he was detained under Immigration Act powers, and held for over two years.
It is Home Office policy to carry out a monthly review of the need for ongoing immigration detention. Indeed, the statutory authority to detain requires renewal. However, in Kambadzi’s case there were no monthly reviews for the first ten months of his detention. He was released from detention in June 2008 after high court action, but has not yet been removed to Zimbabwe because conditions there do not allow for removals at the current time.
BID intervened in the case to emphasise that detention reviews provide an essential safeguard against arbitrary detention. For vulnerable detainees they also secure vital protection against harm to physical and mental health and well-being. The conduct of proper detention reviews, in the context of open-ended and potentially lengthy deprivation of liberty, is an essential feature of a fair system of administrative detention. The monthly detention review and consequent reasons given to detainees for their ongoing detention ensure transparency of decision-making and accountability for process errors in the context of loss of liberty.
R (Walumba Lumba and Kadian Mighty) v SSHD  UKSC 12 (‘Lumba’), where BID also intervened, establishes that a breach of a public law duty on the part of the person authorising immigration detention is capable of rendering that detention unlawful; and did so in that case where the public law breach involved non-adherence to a published policy identifying substantive detention criteria. A key question that remained in SK was the effect of those principles where the breach of public law duty involves non-adherence to a published policy (and delegated legislation) requiring periodic detention reviews.
Lord Hope at paragraph 54 of the judgment notes that:
It is true that the reviews were not required by the statute. But there was a public law duty to give effect to the provisions about reviews in the manual. If the reviews were not carried out – unless for good reason, which is not suggested in this case – continued detention was not authorised by the initial decision to detain. It is no defence for the Secretary of State to say that there were good grounds for detaining the appellant anyway. Unless the authority to detain was renewed under the powers conferred by the statute he was entitled to his liberty. The decision in Lumba leads inevitably to this conclusion.
Statement from BID
This judgment sends a very powerful message that procedural safeguards around immigration detention must be stringently observed, even or especially for the least popular people in society such as foreign nationals convicted of a violent offence and who have no right to remain in the UK. The practical picture against which detention reviews have such importance one of an acute shortage of legal advice and representation for those held in immigration removal centres, and more so for those held in prisons under immigration act powers. Furthermore, the judgment reinforces the importance of detention reviews as a means by which the authority of the Secretary of State to detain is renewed.
- BID's Media Coverage
- Contacts for Media
- Detained casework - the role of Capita Business Services
- Bail for Immigration Detainees intervenes in unlawful detention case
- BIDís survey of legal advice across the detention estate
- Further cuts to legal aid would mean detainees could not challenge ill-treatment
- Latest set of findings from BID's survey of legal representation across the UK detention estate
- New BID factsheet on getting Probation approval for an immigration bail address
- Government's proposed changes to legal aid threaten childrenís access to justice - letter to The Daily Telegraph
- Further threats to access to justice
- New factsheet for detainees on immigration appeals including deportation
- First UK study finds 200 children split from parents in immigration detention
- New rotas for IRC legal advice surgeries now released
- ECtHR judgment in Abdi, BID intervened. Finding of Art 5 breach, real though limited compensation for unlawful detention
- Foreign national offenders - government response to consultation on draft CPS code of practice on adult conditional cautions
- Parliamentary launch of new BID research 17 April. Event: 'Fractured childhoods: the separation of migrant families'
- Totally ignored: foreign national offenders and the introduction of a Payment by Results system for rehabilitation work
- Litigants in Person vs. Self-Represented Litigants: a view from immigration bail hearings in light of new guidance on terminology from the Master of the Rolls
- Latest version of UKBA travel document guidance, including timescales, now available here.
- BID's view on determinations of unlawful detention being moved to the First Tier Tribunal: an extract from our new research report 'The Liberty Deficit: long-term detention & bail decision making'
- Recommendations from BID's new report on bail decision making, 'The Liberty Deficit'
- New ILPA briefing on mental health & detention produced following BID and AVID meeting with Dept of Health & UKBA
- 'Getting real about risk: managing ex-offenders and release from detention', BID's AGM 22nd January 2013
- Detention in UK characterised as `detain first, ask questions laterí by BID's Director Celia Clarke in our Annual Report for 2012
- New UKBA guidance 'Standard paragraphs for bail summaries' December 2012
- Update on important legal cases
- BIDís legal advice in detention survey
- New BID research report on bail decision making and long-term detention, 'The Liberty Deficit: long-term detention and bail decision-making'
- MoJ consultation on code of practice for adult conditional cautions - BID submission on foreign offender conditional cautions
- Revised BID handbook on bail 'How to get out of detention' is out now
- Detainees' experiences of getting legal advice across the UK detention estate - new BID survey results out
- Mental health crisis in immigration detention - BID and AVID launch a new briefing
- BID letter in the Guardian on the need to respect human rights for foreign national ex-offenders
- BID raises concerns about new HMIP approach to immigration detention inspections
- BID intervenes in Home Office challenge to limit private law claim for unlawful detention
- Former client of BID granted refugee status
- Former IAS clients - how to obtain files and original documents from the administrator. There is a deadline of 28th May 2012 for retrieval.
- Discriminatory attempt to use criminal justice provision to effect immigration control in Legal Aid, Sentencing & Punishment of Offenders Bill
- NEW BID Travel Document Project briefing on 'Cooperation & Removability', including practical steps, and criminal sanctions (s35 prosecutions) and 'reasonable excuse'
- Bailed detainees - how to make an application for S4 bail accommodation and support once released if a private accommodation arrangement breaks down
- NEW leaflet 'Accomodation and Financial Support on Release' for detainees, from BID and the Ex-Detainee Project at Dover Detainee Visitor Group
- ILPA & BID joint response to consultation on new bail guidance for immigration judges
- Prisons Inspector criticises UK Border Agency for holding too many pregnant women in detention
- New LSC legal surgery rotas available here
- Inspectorate report on UKBA and foreign national ex-offenders
- Refugee Children's Consortium briefing - current situation around immigration detention of children & the new family returns process, Sept 16th 2011
- Latest (2011) version of UKBA's Emergency Travel Document timescales and requirements now available to download from BID website
- Superceded 2003 bail guidance for adjudicators along with timeline of use - for reference
- Link to urgent advice for clients of IAS (Immigration Advisory Service) from the administrator
- Revised immigration bail guidance for immigration judges released by President of the First Tier Tribunal of the Immigration & Asylum Chamber.
- Latest BID & ICAR survey finds detainees now less aware of the free 30 minutes legal advice scheme in IRCs, and 32% of those using the DDA scheme wait one week or more for appointment
- UKBA's Emergency Travel Document timescales and requirements now available to download from BID website (2010 version)
- Judgment handed down on unlawful detention of foreign national ex-offender after the Home Office failed to carry out regular detention reviews as required - SK (Zimbabwe) v SSHD
- BID has published new research on detention of children
- UKBA have disclosed the 2010 Returns Group Documentation Unit (RGDU) ETD Country Reference Guide after a BID FOI request
- BID now on Twitter - follow BID's work and news from the world of detention
- BID's comments to Independent Chief Inspector of UKBA on forthcoming joint and thematic inspections - immigration casework and Detained Fast Track
- Outcry! partnership between BID and The Children's Society on child detention comes to an end
- BID is looking for new Trustees to join our Board - Treasurer post, and people with fundraising & communications experience
- Judgment handed down on unlawful detention of mother separated from her children
- BID needs a Media & Communications volunteer for our research and policy office in London. Contact us now!
- New podcast from Harriet Grant for The Guardian on the detention of foreign national ex-offenders
- BID publishes a new bulletin 'The right to legal aid for bail applications'
- BID & ICAR survey shows 19% of detainees interviewed never had any legal advice while in detention
- OutCry! response to Nick Clegg's announcement on the detention of children
- BID is the 2010 winner of the JUSTICE Human Rights Award
- Outcry! briefing outlining concern about new proposed methods of forcibly removing families
- BID & ICAR new survey on level of legal representation among detainees across the detention estate Nov 2010
- New BID bulletin on Section 4 applications for bail accommodation November 2010
- Immigration detainees failed by bail process - new BID report
- BID and The Children's Society comment on child detention figures